Wednesday, June 24, 2009

Are the Orphans really Phantoms?

Opponents of the Google Book Search (GBS) agreement often seem to grasp hold of the emotive issues pertaining to the ‘orphan’ works problem by suggesting some grievance on a massive scale (a content ‘land-grab’) is taking place before our eyes. The GBS, while not perfect, shouldn’t be derailed by a small, potentially un-addressable segment of publishers since the counterveiling benefits are so considerable.

Firstly, the 'orphan' issue is unlikely to represent as large a number of titles - some say as many as 2mm - as suggested. Secondly, the ‘orphan’ issue is by no means a GBS-created issue and facilities available to the parents of these orphans to assert ownership appear to have been largely ignored over the years. There is also a third issue: Copyright holders who have maintained their records and appropriately managed their copyright status stand to lose substantially should the GBS agreement be quashed by the court, and all because of an emotive argument about a relatively small number of possible copyright holders who live in blissful ignorance.

On point three, any publisher that finds their titles have been scanned without their permission can do a number of things ranging from taking compensation and staying in the program, taking compensation and getting out, or doing nothing at all. The overwhelming number of titles scanned by Google appear to be those for which the rights are known, giving these publishers and copyright holders an opportunity to make their titles widely available and perhaps even make some money. This vast pool of titles will naturally benefit the wider publishing audience (whether students or consumers) and this is a social good that substantially exceeds the pitfalls inherent in the so-called orphan “land-grab”.

Importantly, the GBS agreement makes this access possible and empowers copyright holders to establish their own business arrangements. Publishers removing their title(s) from GBS only makes sense to me if they then go into the Google Publisher program instead. As part of this agreement, publishers that find their books in the GBS pool have an easy opportunity to assert their ownership and determine their rights. It is this facility – now with the breadth and market penetration of Google – that represents yet another in a series of decades-long opportunities that copyright owners have had to assert their ownership. Importantly, the GBS (BRR) registration process doesn’t cease once the agreement is approved; rather, money is set aside and the facility remains open for owners to register their titles and assert their ownership at any time in the years to come.

The copyright office, Bowker’s Books In Print, the ISBN agency, Amazon.com, Worldcat & OCLC have all provided some ability for copyright owners to ‘register’ their titles, update their information, possibly apply for an ISBN (if the title pre-dates 1970), change pricing, etc., etc. The Amazon emporium, together with the associated raft of retailers including second-hand and antiquarian stores, have represented years' worth of opportunity for a copyright owner to ‘find their title’. Worldcat – available in most libraries - has enabled copyright owners to find their titles and even request a physical copy should they want to. These facilities continue to offer copyright owners easy access to finding out about the existence and location of their potential works. Once located and correctly identified, there have been numerous ways to correct information regarding ownership. Importantly, the Google Book Settlement agreement doesn’t circumvent that opportunity in any way; rather, it enhances it.

I’ve spent some serious time analyzing this and it looks to me like the unknown number of 'orphan' titles will be low, both in absolute terms and in relationship to the total scanned book universe. Ample opportunity has been and continues to be afforded this group to assert their ownership and to make a business decision they believe to be in their best interests. What shouldn’t happen is to allow the insurmountable issues of effectively reaching this ‘orphan’ group to derail this agreement that represents a massive step forward in accessibility and knowledge.

If real orphan works are few, meaning that most copyright holders will come forward or easily be found, then there's no need for the coerced opt-in aspects of the Google settlement that come into effect on September 4. Not having those few titles available won't matter much and dropping forced opt-in will removed the most controversial aspect of the settlement.

Unfortunately, Google knows better. Their initial scans of copyrighted texts have only resulted in a bit over 4% of the owners coming forward to opt in or out. (I have those figures directly from Michael Boni, the lawyer representing the 'author sub-class.') Given that the publicity over signing up will never be greater, that's the maximum figure we'll see.

That allows us to generate some numbers:

Number of books out of print but in copyright globally x 0.96 = number of orphan works being displayed by Google in the U.S. without the copyright holder's permission.

So if the first figure is 10 million, then 9.6 million of those 10 million titles are, from the perspective of this settlement, orphan works. I'd hardly call 9.6 million out of 10 million insignificant.

Google, you'll notice, has not been publishing data from their book registry. They have been talking in generalities. They know better than to release numbers like these.

Here is what those numbers mean. If approved, this settlement will let Google exploit financially (ad placement etc.) the great bulk of out-of-print titles. No one else will be able to compete because, when others go to the registry, there'll be no contact information. That's why Google wants orphans, the more the better for them.

And that's why Google won't bend on forced opt-in. It's an essential part of their scheme.

Michael Cairns

I enjoy discussing the publishing industry and in particular the changes that impact the business. On PND, I don't write about everything, just the things that interest me.

My career spans a wide range of publishing and information products, services and B2B categories and my operating and consulting experience has largely been with brand-name companies such as PriceWaterhouseCoopers, Macmillan, Inc., Berlitz International, AARP, R.R. Bowker and Wolters Kluwer.

I have served as a board member of the Association of American Publishers (AAP), the Book Industry Study Group (BISG) and in addition to my responsibilities at R.R. Bowker, l also served as Chairman of the International ISBN Executive Committee.